Judge Cherol J. Nellon, Case Number: 22STCV32412, Date: 2024-11-13 Tentative Ruling

Judge: Cherol J. Nellon, Case: 22STCV32412, Date: 2024-11-13 Tentative Ruling

Case Number: 22STCV32412 Hearing Date: November 13, 2024 Dept: 14

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Case Background

his is an action for breach of contract, common counts, and foreclosure of mechanic’s lien. Plaintiff alleges that Defendants requested that Plaintiff establish a credit account for defendants to permit Defendants to purchase goods from Plaintiff. Defendants refused to pay for the purchased goods.

On October 4, 2022, Plaintiff Calportland Company filed its Complaint against Defendants Nibbelink Masonry Construction Corporation (Nibbelink) and 1410 Highland Venture, LLC (Highland).

On November 28, 2022, Plaintiff filed a First Amended Complaint (FAC) naming two more Defendants, Angeles Contractor (Angeles) and Western Surety Company (Western).

On February 10, 2023, Nibbelink filed its Cross-Complaint against Angeles Contractor, Inc.

On March 14, 2023, Angeles Contractor filed its Cross-Complaint against Nibbelink.

On November 7, 2023, Plaintiff dismissed its Complaint.

On December 1, 2023, February 27, 2024, and May 20, 2024, the Court deemed this case related to cases 22STCV34176, 22STCV35549, 23STCV06009, 23STCV00762, and 23STCV27750.

On September 17, 2024, 1410 Highland Venture LLC filed a motion to continue trial.

On July 26, 2024, Defendants Angeles Contractor, Inc. (ACI) and The Western Surety Company filed a motion to consolidate.

On October 1, 2024, the Court granted a motion to consolidate this case with related cases 22STCV34176, 22STCV35549, 23STCV06009, 23STCV00762, and 23STCV27750.

On October 11, 2024, Cross-Complainant Nibbelink filed this motion for leave to file a First Amended Cross-Complaint. The motion is unopposed.

Instant Pleading

Cross-Complainant Nibbelink moves for leave to file a First Amended Cross-Complaint.

Decision

Nibbelink’s motion for leave to file a First Amended Cross-Complaint is GRANTED. Nibbelink is to file its First Amended Cross-Complaint within 10 days of this order.

Legal Standard

A court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., section 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.)

A motion to amend a pleading before trial must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, Rule 3.1324(a).) A separate supporting declaration specifying (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reason why the request for amendment was not made earlier must accompany the motion. (Id., Rule 3.1324(b).)

Discussion

Nibbelink moves to amend the Cross-Complaint by adding a fifth cause of action for enforcement of a mechanic’s lien release bond and allegations related to this new cause of action. (Holbrook Decl., ¶3.) This cause of action and related allegations were not included earlier because Defendant ACI did not record the subject mechanic’s lien release bond until October 1, 2024. (Id., ¶2.) Nibbelink properly includes a declaration from counsel, a copy of the proposed amended pleading, and an explanation of what allegations were added to the amended pleading. (Id., Exh. 1.)

Nibbelink meets the requirements of Cal. Rules of Court, Rule 3.1324. The Court is satisfied that the new allegations could not have been added earlier because ACI did not record the subject mechanic’s lien release bond until October 1, 2024. Additionally, this motion is unopposed. The lack of an opposition amounts to a concession that the motion is meritorious. (See California Rules of Court Rule 3.1113(a); see also Rule 3.1320(f); Herzberg v. County of Plumas (2005) 133 Cal.App.4^th 1, 20 (the party who fails to argue an issue abandons that issue).) Therefore, Nibbelink’s motion to file a First Amended Cross-Complaint is GRANTED.

Conclusion

Nibbelink’s motion for leave to file a First Amended Cross-Complaint is GRANTED. Nibbelink is to file its First Amended Cross-Complaint within 10 days of this order.